move the forces, his power as head of the civil administration to direct and instruct diplomatic, consular and other officers within the scope of their powers as fixed by congress, his power to negotiate treaties, his power to receive diplomatic officers and his other powers given specifically by the Constitution or by congress in the manner most appropriate to execute the laws, including international law and treaties. It does not mean that he can supply means not provided by law or take measure not within the scope of his delegated powers, however appropriate they might be for the meeting of international responsibilities. Within his recognized powers, however, assuming the existence of the military, naval and civil organizations as provided by congress, the President has power to meet many international responsibilities without the aid of congress. 94. Power of Courts to Meet International Responsibilities. The federal courts are obliged by the Constitution to apply treaties as the supreme law of the land and have held that they must apply international law in appropriate cases, though subsequent express statutes will prevail in either case.25 This, however, is an obligation and not a power. The view taken by the courts in a few early cases that from these duties they could derive jurisdiction to enforce international law even by criminal punishments has not prevailed.26 The extension of federal judicial power by Article III of the Constitution: "to all cases, in law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority;-to all Cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; and to controversies . . . between a State or the Citizens thereof, and Foreign states, Citizens or Subjects" seems to give an opportunity for a full cooperation of the federal courts in meeting international responsibilities. This jurisdiction, however, with exception of the original jurisdiction of the Supreme Court which includes cases affecting diplomatic officers and consuls, 25 Infra, secs. 106–108. 26 Infra, sec. 129. is subject to regulation by congress. Thus in fact, aside from the recourses offered diplomatic officers and consuls to the Supreme Court, the federal courts can aid in the meeting of international responsibilities only in so far as congress has specifically conferred jurisdiction upon them. Their jurisdiction has in fact been extended to most of the cases described in the Constitution and their application of international law and treaties, in prize cases, cases affecting foreign sovereigns, diplomatic, military and naval officers, cases affecting domiciled aliens, sojourning foreign vessels and others is an effective means of meeting many international responsibilities. Congress has defined a considerable number of crimes at international law, such as piracy, offenses against neutrality, offenses against foreign ministers and offenses against foreign currency, which are made punishable by the federal courts.27 95. Power of Congress to Meet International Responsibilities. Aside from the exercise of specific powers, such as the appropriation of money, the regulation of commerce, provision for the punishment of piracies and offenses against the law of nations, declaration of war, grant of letters of marque and reprisal, making of rules concerning capture, maintenance and regulation of an army and navy, Congress can "make all laws which shall be necessary and proper for carrying into execution . . . all . . . powers vested by this Constitution in the Government of the United States or in any department or officer thereof." This clause unquestionably confers power upon Congress sufficient to meet every possible international responsibility. Accepting the doctrine of the Supreme Court that the exercise of sovereignty may be limited only by its own consent,28 it follows that every international responsibility must have originated in a constitutional exercise of power by some organ of the national government, either through positive action or tacit recognition. Thus responsibilities founded on treaty originate in a 27 Infra, secs. 113-118. 28 The Schooner Exchange v. McFaddon, 7 Cranch 116, quoted with approval in the Chinese Exclusion Cases, 130 U. S. 581 (1889). See also infra, sec. 138. valid act of the treaty power, responsibilities founded on arbitral decisions originate either in a valid act of the treaty power or of the President, responsibilities founded on general international law originate in the tacit acceptance of that law by the terms of the Constitution29 and by the President in continuing membership in the family of nations, as evidenced through the continued exchange of diplomatic officers.30 In providing for carrying these powers into execution, therefore, Congress would be providing for meeting the international responsibilities they created. Thus if the President or the Courts are unable properly to meet any international responsibility it is not from a defect in the Constitution, but from failure. of Congress fully to exercise its powers under the "necessary and proper" clause. Congress has in fact enacted many laws whose purpose is the enforcement of international law and treaty. It has never failed to make an appropriation when called for by treaty and has often made appropriations to satisfy claims based on international law as determined by diplomatic correspondence or arbitration.82 31 96. Power to Meet International Responsibilities by Treaty. An international responsibility may occasionally require conclusion of a treaty. Suffice it to say that the President, acting with advice and consent of two-thirds of the senate, is authorized to make treaties on all subjects suitable for international agreement.3 29 Willoughby, op. cit., p. 1018, and Am. Jl. Int. Law, 2: 357. 81 Infra, secs. 112–118. 32 Infra, sec. 149. 39 Infra, sec. 173. 33 CHAPTER XI. THE POWER TO MEET INTERNATIONAL ResponsibilITIES THROUGH THE OBSERVANCE OF INTERNATIONAL LAW. 97. Conditions Favoring the Observance of International Law. The responsibility of the nation for acts of government organs imposes a duty upon every organ to abstain from action in violation of international law or treaty. This responsibility will be met if every independent organ of government is careful to exercise its discretionary power in accordance with this duty, consequently there can be no question of the power of the government to meet this responsibility. Is it probable that independent organs will recognize international law, rather than national policy, as a proper guide in the exercise of their powers? No organ is in fact wholly independent. The government is a complex organization, the action of each organ being to a certain extent influenced by that of others. We may, therefore, investigate the conditions which tend to assure the observance of international law and treaty by the various organs of government in the present state of public law. 98. Observance of International Law by the States. A state constitution or legislative provision in violation of customary international law is valid unless in conflict with a Federal constitutional provision or an act of Congress as would usually be the case. However, it appeared in 1842 that the criminal laws of New York made no exception in favor of persons entitled to immunity under international law and the United States had no means of relieving Alexander McLeod from the operation of those laws, although the Secretary of State admitted the responsibility to do so under international law. Congress has power to pass legislation assuring respect for international law by the states and such legislation was passed soon after this incident. If a state law disregards a treaty 1Act of Aug. 29, 1842, Rev. Stat., sec. 753. See Moore, Digest, 2: 24-30. "2 it is void. The courts both federal and state are obliged to apply treaties "anything in the Constitution or Laws of any State to the Contrary notwithstanding.' Thus state confiscation acts were held void as in violation of the treaty of peace with Great Britain of 1783 and many other state statutes discriminating against aliens have been similarly invalidated. 99. Observance of International Law by the Constitution. If the Constitution proves in any respect in violation of international law there is no recourse except to the amending process, but in view of the generality of its provisions, a conflict, incapable of reconciliation by interpretation, is not likely to occur. The courts have held that they must interpret the Constitution in accord with international law if possible and thus have protected the immunities of diplomatic officers against the constitutional clause guaranteeing the accused a right "to have compulsory process for obtaining witnesses in his favor." The 18th amendment has been held to permit the customary exemption from search of the baggage of diplomatic officers. 100. Observance of International Law by Congress. The observance of international law and treaty by Congress depends upon the discretion of that body. An act of Congress if constitutional is valid within the United States even though in direct violation of international law or treaty as was illustrated by the Chinese exclusion act of 1888. "It must be conceded," said the Supreme Court, "that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid or to be 2 U. S. Constitution, Art. VI, sec. 2. see Crandall, op. cit., of the Treaty Making Moore calls an appre 8 Ware v. Hylton, 3 Dall. 199. On this case pp. 154-160. H. St. George Tucker, Limitations Power, Boston, 1915, has been led by what J. B. hensive" interpretation of the Constitution (Pol. Sci. Quar., 32: 320) to take a novel view of this case. Crandall, loc. cit., effectively deals with this interpretation. See also infra, sec. 50. * See cases of Dubois and Comancho, Moore, Digest, 4: 643-645; Wright, Am. J. Int. Law, 11: 5; and supra, sec. 45. |